Case No.: IT-01-47-T

Before:
Judge Jean-Claude Antonetti
Judge Vonimbolana Rasoazanany
Judge Bert Swart

Registrar:
Hans Holthuis

Decision of:
22 June 2005

The Office of the Prosecutor:

Mr Daryl Mundis
Mrs Tecla Henry-Benjamin
Mr Stefan Waespi
Mr Matthias Neuner

Counsel for the Accused:

Mrs Edina Residovic and Mr Stéphane Bourgon for Enver Hadzihasanovic
Mr. Fahrudin Ibrisimovic and Mr Rodney Dixon for Amir Kubura

1. TRIAL CHAMBER II (“the Chamber”) of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (“the Tribunal ”) has been seized of a request for the admission of 780 documents (“the proposed exhibits”) including documents tendered for the purpose of identification by the Defence of Mr Hadzihasanovic (“the Defence”).

2. On 4 October 2004, 11 October 2004, 8 November 2004, 3 December 2004 and 18 March 2005 the Defence filed confidentially respectively its “List of Exhibits Version 1”, “List of Exhibits Version 2”, “List of Exhibits Version 3”, “List of Exhibits Version 4” and “List of Exhibits Version 5”.

3. On 11 April 2995, the Defence filed jointly and confidentially its “Final List of Exhibits of Enver Hadzihasanovic Version 6” dated 11 April 2005 (“the New List ”) and its Motion Seeking Admission of Documents in Evidence (“First Motion”) in which it requests inter alia the admission of documents on the New List which have not yet been definitively admitted in evidence.

4. On 18 April 2004, the Chamber made an oral request to the Defence to identify those documents on the New List not yet admitted in evidence which were tendered by a witness and to indicate the name of the witness or witnesses who presented the documents so that the Chamber may rule on the admissibility of the proposed exhibits on the New List.¹ The Chamber also made an oral request to the Office of the Prosecutor (“Prosecution”) to respond with 14 days.²

5. On 28 April 2005, the Defence filed a confidential Motion “Transmission of 70 documents translated by CLSS and notice of related modifications to the Hadzihasanovic final list of exhibits – version 6 – dated 11 April 2005” (“the Second Motion”) in which it asks the Chamber to take note of its modifications to the New List in view of the transmission of new translations and to admit into evidence 22 documents previously marked for identification and for which the translations were transmitted.

6. On 10 May 2005, the Defence filed jointly and confidentially its last translations as the “Final Missing Translations and List of Exhibits” (“Final List”) as well as its “Motion Seeking Admission of Documents in Evidence” (“Third Motion”) in which it asks the Chamber to note that it had fulfilled its obligations under Rule 65 ter (G) of the Rules of Procedure and Evidence (“the Rules”), to admit in evidence the proposed exhibits in annexes A, B (1) and B (2) to the Third Motion (respectively “Annex A”, “Annex B1”, “Annex B2”), and to note that annexes C, D, E and F to the Third Motion had been filed.

7. On 19 May 2005, the Prosecution indicated orally that it was not contesting the admission of the proposed exhibits but that it reserved the right to object to the Defence allegations in paragraph 7 of the Third Motion.³

8 On 27 May 2005, in accordance with the instructions of the Chamber, the Defence filed a new version of Annex B(2) to the Third Motion (“Modified Annex B 2”).

9. The Defence is requesting the admission of 780 documents divided as follows : (a) 32 documents in Annex A which, according to the Defence, were used with Prosecution witnesses as well as with Witness ZP who was called by the Chamber, and which have already been given a number for the purposes of identification⁴; (b) 44 documents in Annex B1 which, according to the Defence, were used with Defence witnesses and have not yet been admitted in evidence for the purposes of identification or which have only been given a provisional number⁵; (c) 704 documents in Annex B2 which have been either shown or used with Defence witnesses⁶.

10. In support of its request for admission into evidence, the Defence submits that: (a) the proposed exhibits are highly relevant to this case but relate to events on which witnesses have already testified so that their purpose is to give further probative value to those documents already admitted as well as the testimony of Defence witnesses that have been heard⁷; (b) all the proposed exhibits were given to the Defence military expert who used them at the drafting stage of his report or to prepare for his testimony⁸; the expert historical witness used many of the proposed exhibits as background material at the drafting stage or to prepare for his testimony⁹; and (d) the Defence constitutional expert used many of the proposed exhibits as background material at the drafting stage of his expert report or to prepare his testimony¹⁰.

11. The Prosecution indicated that it was not contesting the admission of the proposed exhibits but that it reserved the right to object to the Defence allegations in paragraph 7 of the Third Motion that this motion for admission is significantly different from the procedure used for Prosecution exhibits “which were admitted in evidence without being used with any witness.”¹¹ The Prosecution also submits that the Chamber should not rule on this Defence submission.¹²

12. In its Decision of 2 August 2004, the Chamber conducted a thorough review of the applicable law on the procedure for the admission of evidence. Accordingly, the Chamber will initially limit itself to reiterating several general principles applicable to that procedure.¹³

13. The practice at the Tribunal, consonant with the Statute of the Tribunal (“Statute”) and the Rules of Procedure and Evidence (“Rules”) which constitute a combination of rules of procedure stemming from the common and civil law systems, does not fit neatly into any existing tradition. Its practice is guided solely by the concern that the case be adjudicated equitably while protecting the rights of the accused. The issue of the admissibility of evidence is governed in Part Six, Section 3 of the Rules entitled Rules of Evidence. Accordingly, Rule 89 (C) provides that a Chamber may admit any relevant evidence which it deems to have probative value, and Rule 89(D) envisages a possibility for excluding evidence, and not an unconditional obligation to exclude it, if the probative value of that evidence is substantially outweighed by the need to ensure a fair trial. The approach taken by the Tribunal on several occasions¹⁴ is to define a framework which takes account of the accused’s right to have his case heard fairly and in public. Within that context, the Chamber must ensure that the trial is fair and expeditious, that the proceedings are conducted in accordance with the Statute and the Rules and that the rights of the accused are respected.

14. Furthermore, Rule 89(A) of the Rules states that the Chamber is not bound by national rules of evidence. In this spirit, in its search for the truth, the Chamber need not be hindered by technicalities, except in respect of the provisions of Rules 89. There is no reason to make the general rules on exclusion of evidence applied in common law systems authoritative precisely because the Judges of the Chamber are professionals capable of evaluating the probative value of testimony and documents. This principle has been unambiguously asserted in the Tribunal’s case-law¹⁵

15. Several Chambers have established certain guiding principles governing the admission of evidence¹⁶. These principles, which this Chamber accepts, may be summarised as follows:

- the parties must keep in mind the fundamental distinction between the admissibility of documentary evidence and the weight accorded to it pursuant to the principle of free evaluation of evidence;

- the fact that an exhibit is not admitted does not preclude a subsequent review of the decision if new, relevant, compelling evidence justifying the admission of a contested exhibits appears;

- the mere admission of an exhibit does not in and of itself mean that its content is considered an exact representation of the facts;

- when objections to the authenticity of evidence are raised, and when documents or video recordings are admitted, the weight assigned will be evaluated in the light of the entire record;

- there is no principle of automatic exclusion because the alleged source of the document has not been called to testify at the trial. Likewise, a document with neither a signature nor a seal is not a priori said to be inauthentic;

- circumstantial evidence may be admitted¹⁷;

- the rule of best evidence will be applied, that is, the Chamber will rely on the best evidence available under the circumstance of the case;

- documents obtained improperly will be excluded, and

- pursuant to the Statute, the Chamber is the guardian and guarantor of the rights of the accused in respect of both form and content. The Chamber must also strike a balance between protecting those rights and protecting the rights of victims and witnesses. As the trial is often a demanding search for the truth about an accused’s individual criminal responsibility, questions of admissibility of evidence do not arise only if the parties object to evidence whose admission into the record has been requested by the other party. The Chamber has the inherent right and duty to ensure that evidence admissible under the provisions of the Rules is admitted. To this end, the Chamber is fully empowered to exclude evidence which, for the reasons set out in the Rules, it considers should not be admitted.

16. Among the provisions dealing with evidence, Rule 89(C) of the Rules is of particular interest in respect of the issue before the Chamber. Under this provision, the Chamber may admit any relevant evidence which it deems to have probative value. Although the provision unequivocally establishes that the two criteria for the admissibility of evidence are relevance and probative value,¹⁸ the Rules also provide grounds for the exclusion of evidence. Hence, Rule 89(D) provides that a Chamber may exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial. Rule 95 of the Rules states that no evidence shall be admissible if obtained by methods which cast substantial doubt on its reliability or if its admission is antithetical to, and would seriously damage, the integrity of the proceedings. These provisions clearly establish no general prohibition against hearsay evidence.¹⁹ It is also clear that the evaluation of the reliability of evidence is a component of evaluating its admissibility.

17. In common law systems, evidence with probative value is generally defined as evidence that tends to prove an issue²⁰. Relevant evidence can defined as follows:

There are two components to relevant evidence: materiality and probative value. Materiality looks to the relation between the propositions for which the evidence is offered and the issues in the case…. The second aspect of relevance is probative value, the tendency of evidence to establish the proposition that it is offered to prove.²¹

The definition makes clear that relevance and probative value have a specific connection. The Tribunal’s case-law moreover has confirmed that for one fact to be relevant to another “there must be a connection or nexus between the two which makes it possible to infer the existence of one from the existence of the other. One fact is not relevant to another if it does not have real probative value with respect to the latter.”²² It is obvious however that an abstract definition of these concepts is difficult to formulate. Their application depends primarily on the specific circumstances of the case and the nature of the evidence whose admission is being sought.²³

18. Furthermore, the evidence which “tends to prove an issue’ must demonstrate a certain degree of reliability.²⁴ Accordingly, in order to determine whether evidence has probative value within the meaning of Rule 89(C) of the Rules, the Trial Chamber must at the very least consider whether it is reliable.²⁵ In respect of circumstantial evidence such as hearsay, at the time its probative value is tested, the Trial Chamber must pay particular attention to the indications of reliability.²⁶

19. The Chamber will now examine the admissibility of the Defence evidence presented in this case.

20. The Defence submits that the proposed exhibits should be admitted not only because they are highly relevant to the present case but also because they were used by the military, historical and constitutional experts to draft their reports or to prepare for their testimony before the Chamber.²⁷

21. The Chamber would first note that it is ruling on the admissibility of only documentary evidence. For a document to be admitted, the party wishing to rely on it must first prove that it satisfies the standards of relevance and probative value set out in Rule 89(C) of the Rules. The document must have “some relevance ” and “some probative value”).²⁸ This means that for evidence to be declared admissible, the Chamber need not determine its precise probative value since this will be done only at a later stage. The Chamber must merely be sure that it has some probative value and some relevance.²⁹ In addition, the Chamber must determine whether the document is reliable. This notwithstanding, for an exhibit to be admissible as evidence, prima facie evidence of its reliability suffices.³⁰

22. Several arguments militate for a flexible approach to the application of the standards of relevance and probative value. First, the Chamber recalls that, in accordance with its Decision, the application of these notions depends primarily on the specific circumstances of the case and the nature of the evidence whose admission is requested.³¹ Accordingly, the case the Chamber is now considering is different from others at the Tribunal in that it deals only with the criminal responsibility of a commander under Article 7(3) of the Statute to the exclusion of other forms of individual criminal responsibility. Another characteristic feature here is the fact that the Indictment mentions a great many different events which might entail the Accused’s criminal responsibility. This diversity of events is particularly significant for the alleged perpetrators of the crimes, the victims, the locations, the times the alleged acts are said to have been committed and the circumstances surrounding them. For this reason, evidentiary problems other than those encountered in a case dealing with the criminal responsibility of an individual under Article 7(1) of the Statute or involving a more limited number of alleged acts may arise. The specific nature of this case therefore requires that an overly stringent criterion for admission not be used.

23. Second, documents are frequently tendered for admission not to prove the guilt or innocence of the accused but to establish a context for the specific circumstances of a case. Accordingly, in this case, understanding the context relevant to certain events or to an armed conflict in general is needed to understand the events at issue. Moreover, this is the view the Chamber has taken during the trial, that is, a liberal approach in respect of the relevance and probative value of the exhibits proposed for admission.³²

24. Third, a document which might initially appear insignificant or not particularly relevant may become much more important when viewed in the context of other documents or testimony. A document which in itself has little relevance can therefore become more relevant if it rounds outs the image formed by the evidence already gathered.

25. Fourth, a document which deals with a period before or subsequent to the period in which the offences charged in the Indictment were committed may make it possible to acquire a better understanding of the events or developments alleged to have occurred during the material time.

26. Accordingly, in view of the above, the notions of probative value and relevance should be applied broadly and documents should not be rejected too hastily. The Chamber will now examine the relevance and probative value of the proposed exhibits by dividing them into three distinct categories, given the fact that they were discovered under the same circumstances.

a) documents already admitted by the Chamber or withdrawn by the Defence

27. Of the proposed exhibits, the Chamber already admitted document DH 1867 by oral decision of 14 April 2005.³³ It is thus pointless to further discuss exhibit 1867 which remains admitted as evidence.

28. Furthermore, the Chamber notes that, in its First Motion, the Defence requests that several documents be withdrawn because they repeat what is contained in other documents or because it no longer considers them necessary for its case.³⁴ Among the documents which have been withdrawn are the exhibits proposed for admission numbered 1950 and 1953. In view of the Defence submissions to justify the withdrawal of those two documents, the Chamber takes note of the withdrawal of documents 1950 and 1953 so that it is unnecessary to discuss their admissibility any further.

b) Documents presented by a witness.

29. The Defence requests that the proposed exhibits in Annex A and Annex B1, numbered as follows, be admitted: ID 26, ID 27, ID 57, ID 109, ID 110, ID 113, ID 114, ID 117.1, ID 125. ID 126, ID 131, ID 175, ID 207, ID 208, ID 222, ID 225, ID 228, ID 231, ID 234, ID 239, ID 240, ID 251, ID 328-336, ID 360, ID 408, ID 535, ID 590, ID 786, ID 1002, ID 1064, ID 1192, ID 1321, ID 1397, ID 1468, ID 1478, ID 1483, ID 1517, ID 1631, ID 1632, ID 1634-1636, ID 1638, ID 1642, ID 1684, ID 1739, 1893, ID 1940, ID 2016-2018, ID 2019, ID 2021-2024, ID 2036, ID 2037, ID 2047, ID 2065, ID 2066, ID 2082-2085, ID 2086.

30. The Chamber notes that these documents were presented by the Defence within the context of Prosecution testimony, the testimony of Witness ZP whom the Chamber called to appear and Defence testimony. In view of the above considerations, the Chamber holds that within the overall context of the case before it, these documents demonstrate some relevance and some probative value, including reliability, and that they are admissible as evidence in this case.

31. The Defence seeks the admission of 704 proposed exhibits in Annexe B(2) and modified in Modified Annexe B(2) on the ground that, while neither submitted nor used in testimony, they contain additional information in respect of documents which were admitted through Defence witnesses³⁵ and that all the documents were used by the military expert and many by the historical and constitutional experts at the drafting stage of their reports or to prepare for their testimony.³⁶

32. The Chamber first notes that none of the 704 proposed exhibits was presented through a witness. Among them, however, 51 were expressly cited by the Defence military, historical and constitutional experts in support of their reports. Nonetheless, the remaining 653 exhibits were neither presented nor cited by the three experts as having been used to prepare their reports. Although the Defence claims that the documents were used by the three experts to draft their reports or to prepare for their testimony, it must be noted that in view of the information provided by the Defence it is extremely difficult, if not impossible, to verify that allegation. The question arises as to whether any of those documents may be admitted without the person who wrote the document or another person who could testify about it having been called to testify before the Chamber.

33. As the Chamber already set out its Decision, the question of whether a document may be admitted without having been introduced through a witness is closely related to the application of Rule 89(D) of the Rules.³⁷ The Chamber recalls that the Tribunal’s case-law has clearly affirmed that there is no principle of automatic exclusion of a document merely because the alleged source was not called to testify during the trial.³⁸ Accordingly, the Trial Chamber in the case Delalic et al held that “there is, however, no ground for a general finding to the effect that the probative value of documents of this category is so outweighed by any prejudicial effects that they should be considered generally inadmissible.”³⁹ It added that “it is a different matter that the probative value of such evidence by necessity will be affected by the fact that it has not received the scrutiny involved in the cross-examination of a witness. This is an important factor to which the Trial Chamber will give due consideration at the stage of assessing the weight to be attached to exhibits of this nature.”⁴⁰ Therefore, the party seeking the admission of a document without using a witness runs a certain risk. Its probative value may be lessened as a result and, in some cases, in application of Rule 89 of the Rules, its exclusion may be justified.

34. The Chamber notes that at the time the Prosecution sought admission of exhibits, the Defence stressed the importance of introducing documents through a witness so that it would have information about their author, source, use, form and content.⁴¹ Recently, the Defence made an oral submission that the importance attached to a document depends largely on its having been identified by a witness or the possibility of subjecting it to cross -examination at trial.⁴²

35. The Chamber holds that for a document to be admissible it need merely show sufficient indications of relevance, probative value and reliability. In this case, the Prosecution has raised no objection whatsoever to the documents whose admission is being sought without a witness. In addition, the documents in question, which the Chamber conscientiously examined one by one on the basis of the criteria for admissibility defined above, shed light on the background relevant to certain events in this case and fit into the overall framework of the case now before this Chamber, Accordingly, the documents show general relevance in respect of the context of the events material to the Indictment. For these reasons, and in the light of the considerations set out above, the Chamber notes that all the documents not presented through a witness which the Defence has not already withdrawn contain sufficient indications of relevance and probative value, including reliability, and decides that their admission is justified.

C. Translations

36. In its Second Motion, the Defence requests the admission of 22 documents previously marked for identification for which the translations were filed along with the Second Motion.⁴³ However, in its Third Motion, the Defence submits that the 22 documents were already assigned a number.⁴⁴

37. The Chamber observes that those documents were tendered only for identification purposes until such time as the translation had been received. Since the translations of the 22 documents were filed and communicated to the Prosecution, the Chamber decides to admit the 22 documents with the following numbers: ID 364, ID 368, ID 370, ID 374, ID 375, ID 399, ID 1552, ID 1559, ID 2105, ID 2020, ID 2025, ID 2031, ID 2034, ID 2039, ID 2041, ID 2045, ID 2046, ID 2048, ID 2049, ID 2051, ID 2053 and ID 2058.

D. Withdrawal of documents

38. As set out above, in its First Motion, the Defence requests the withdrawal of 241 documents either because they overlap with other evidence or because it no longer considers them necessary for its case.⁴⁵ In its Second Motion, the Defence submits that 17 documents previously indicated as missing from the New List were therefore withdrawn from the New List.⁴⁶ And in its Third Motion, the Defence withdrew 7 additional documents on the ground that they have not been translated.⁴⁷

39. In view of these Defence submissions to justify the withdrawal of the documents, the Chamber notes that the Defence has withdrawn the 265 documents as indicated in Annex 2 attached to this decision.

FOR THE FOREGOING REASONS

IN APPLICATION OF Rules 54 and 89 of the Rules,

PARTIALLY GRANTS the Defence request, and

DECIDES that the following documents are admitted: ID 26, ID 27, ID 57, ID 109, ID 110, ID 113, ID 114, ID 117.1, ID 125, ID 126, ID 131, ID 175, ID 207, ID 208, ID 222, ID 225, ID 228, ID 231, ID 234, ID 239, ID 240, ID 251, ID 328-336, ID 360, ID 364, ID 368, ID 370, ID 374, ID 375, ID 399, ID 408, ID 535. ID 590, ID 786, ID 1002, ID 1064, ID 1192, ID 1321, ID 1397, ID 1468, ID 1478, ID 1483, ID 1517, ID 1552, ID 1559, ID 1631, ID 1632, ID 1634-1636, ID 1638, ID 1642, ID 1684, ID 1739, ID 1893, ID 1940, ID 2015-2020, ID 2021-2025, ID 2031, ID 2034, ID 2036, ID 2037, ID 2039, ID 2041, ID 2045-ID 2049, ID 2051, ID 2053, ID 2058, ID 2065, ID 2066, ID 2082-2085, ID 2086 as well as the documents indicated in Annex 1 attached to this Decision, and

REQUESTS the Registry to assign a number to the documents now admitted which had not been assigned a provisional number and to transmit these numbers in writing to the Chamber and to the parties as quickly as possible, and

TAKES NOTE of the fact that the Defence has withdrawn the documents as indicated in Annex 2 attached to this decision and

REJECTS the remainder of the First Motion, the Second Motion and the Third Motion.

Done in French and English, the French version being authoritative.

________________
Jean-Claude Antonetti
Presiding Judge Trial Chamber II

Done this twenty-second day of June 2005
The Hague.
The Netherlands

[Seal of the Tribunal]